Privacy – Judiciary Committee Update

Since moving on from our consideration of S.241, the Senate bill that would legalize marijuana possession, Judiciary has taken up a number of other bills that came over from the Senate, including S.155. That bill contains a number of provisions related to privacy protection and generally covers four topics.

First, the bill addresses health care privacy. It tracks existing privacy protections for protected health information contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA generally prohibits health care providers, insurers, and others (defined as “covered entities”) from disclosing information about a person’s health condition and treatment (defined as “protected health information”). S.155 would adopt the HIPAA definitions and prohibit, as a matter of State law, a covered entity from disclosing protected health information.

Second, it addresses law enforcement use of drones. The bill would permit law enforcement to use a drone for activities not involving crime-fighting, such as search and rescue, or aerial photography for assessment of accidents, forest fires, flood stages, etc. It would prohibit a law enforcement agency from using a drone or information derived from a drone for the purpose of investigating, detecting, or prosecuting crime. There would be exceptions if the agency has obtained a warrant or the use is pursuant to a judicially-recognized exception to the warrant requirement, including consent or exigent circumstances, such as hot pursuit.

During committee discussions, I have expressed a concern about allowing the use of drones pursuant to one of the existing judicially-recognized exceptions to the warrant requirement: the Plain View Doctrine. Under this exception, objects in plain view may be seized if the officer’s presence in the area is lawful. My problem with applying this exception to drones is that they have a much broader plain view than a walking or driving officer. Because drones can see much more, the doctrine would be stretched beyond its original application. It is not clear how far the Committee will go to address this concern. Should the Plain View doctrine simply not apply when drones are used?

At a minimum, I would like to prevent law enforcement from being able to use the Plain View doctrine in situations where it is using drones for crowd control or public safety. Allowing law enforcement to monitor public gatherings has the potential to impinge upon not only privacy interests, but also certain constitutional rights. Judiciary is still considering language that would address this concern by explicitly prohibiting law enforcement agencies from using drones for surveillance of private citizens peacefully exercising their constitutional rights of free speech and assembly.

In addition, taking a different tack than North Dakota, which has legalized drone-mounted tasers, the bill would prohibit anyone from equipping a drone with a dangerous or deadly weapon or from firing a projectile from a drone.

Third, S.155 would establish the Vermont Electronic Communications Privacy Act (VECPA), which would address law enforcement access to e-mails, communications data, and other records held by electronic communications companies. It would require law enforcement to obtain a warrant before obtaining “protected user information,” defined as the content of the communication, location data, and the subject line of e-mails. A warrant must be based on probable cause to believe the information constitutes evidence of a crime or is relevant to an ongoing criminal investigation. Law enforcement would need to have a subpoena to obtain other information such as “subscriber information,” which includes data such as names, e-mail addresses of senders and recipients, account numbers, payment information, etc. A subpoena may be based on the lower threshold of reasonable cause to believe that the information is relevant to an offense or reasonably calculated to lead to the discovery of evidence of the offense. Disclosure of protected information without a warrant or subpoena would be permitted under existing, judicially-recognized exceptions to the warrant requirement. The bill would require law enforcement, with certain exceptions, to provide the person who is the target of the warrant with notice that the information was obtained.

Fourth, S.155 would replace an existing law due to expire on July 1, 2016, that governs the use of Automated License Plate Recognition (ALPR) systems and the confidentiality and retention of ALPR data. ALPR data may be used for “legitimate law enforcement purposes,” including the detection, investigation, analysis, or enforcement of a crime, or commercial traffic violation (or defending against the same); operation of an AMBER alert; or a missing or endangered person search. Law enforcement would be prohibited from retaining ALPR data for more than 18 months unless this period is extended pursuant to a warrant or a court order or is relevant to a person’s defense.

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Last week, the House Judiciary passed out four bills that it received from the Senate. One, S.154, provides a lesson in how legislation sometimes moves through the General Assembly at this late stage of the biennium. As passed by the Senate, this bill provided for enhanced penalties for assaulting an employee of the Family Services Division of the Department of Children and Families. It also created a new crime called criminal threatening. After hearing testimony, the House Judiciary Committee decided to strike the new threatening crime, as it seemed redundant of currently existing crimes and the Committee generally is opposed to creating any new avenues to incarceration unless there is a clear showing of need. We did keep the enhanced penalty, however.

S.154, as passed by the House Judiciary Committee this past Friday, also includes all of the language from our stalking bill that the House passed out earlier this year. We attached it to this Senate bill because the Senate Judiciary Committee did not pass the bill that the House sent to it earlier. It is my understanding that the Senate Committee simply ran out of time. Attaching the language to S.154 will give the General Assembly a chance to pass the stalking bill into law.

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“Under the Dome”

I appeared for a second time on the Channel 17 program “Under the Dome,” along with two state representatives who serve on the House Committee on Corrections and Institutions.  I discussed some of the issues that the House Judiciary Committee has been addressing this session, including suspended drivers’ licenses, impaired driving, the smoking age and marijuana. You can view the program here.

House Judiciary Marijuana Bill

After taking four weeks of testimony, including joint hearings with the Government Operations Committee and the Human Services Committee and a two-hour public hearing in the well of the House, the Judiciary Committee voted out a strike-all version of S.241 on April 8.

The House Judiciary Committee significantly scaled back the scope of S.241. Through hearing from many witnesses, it became clear to the Committee that Vermont is not sufficiently addressing various problems right now that arise from the use of marijuana in the State. Law enforcement witnesses explained that Vermont lacks the infrastructure to appropriately address risks to highway safety from driving under the influence of marijuana, which is particularly dangerous when combined with alcohol consumption. Although the number of crashes involving fatalities or serious bodily injury has gone down, the number where a driver had THC (the psychoactive ingredient in marijuana) in his or her blood has been going up. Law enforcement does not have the tools or resources at present to address this growing problem.

Although youth usage of marijuana has remained steady, the perception that regular use of marijuana causes harm has been declining. The Committee heard from members of the medical and educational communities on the deleterious effects of regular marijuana use on the developing brain and mental performance. It also heard from members of the education community who explained that the State does not currently devote the appropriate resources to address substance abuse, be it from tobacco, alcohol, or marijuana.

Dr. Harry Chen, the Commissioner of the Vermont Department of Health, reviewed the Department’s Health Impact Assessment related to marijuana. The report explains the many negative health effects from regular marijuana usage, including increases in psychosis, decreased psychosocial functioning, motor vehicle accidents, development of use dependence, and decreased academic performance.

Witnesses from Colorado and Washington shared their experiences and offered advice. The bottom line, however, is that it is too early to tell what the long-term impacts of marijuana legalization will be in those states. Increased usage in Vermont and the increase in negative impacts to highway safety are concerns if Vermont is the only New England state to legalize marijuana given that Vermont is within a day’s drive of some 40 million people.

Judiciary also heard from many proponents of legalization. They explained that marijuana is already widely used by Vermonters. These users should not have to confront the dangers associated with the black market, including product that includes pesticides or other additives and exposure to dealers selling other, more harmful drugs. Individuals should have the same right to moderate use of marijuana as they do to consume alcohol without being subject to criminal penalties so long as they are not causing others harm.

Taking heed of the testimony, on Wednesday the Committee Chair proposed a strike-all amendment to S.241. The bill retained certain provisions of the Senate bill, including sections establishing an education and prevention program, creating a crime for certain dangerous chemical extraction processes (such as was uncovered recently in Winooski), prohibiting the consumption or possession of marijuana in a motor vehicle, calling for the Vermont Governor’s Highway Safety Program to expand its public education and prevention campaign to include drugged driving, requiring additional training for law enforcement, and establishing a workforce study committee. The bill also retained a modified provision establishing a marijuana advisory committee.

The proposal also established a new impaired driving violation to account for the heightened traffic safety risk from polysubstance use – the combined consumption of both alcohol and marijuana. The strike-all amendment would prohibit individuals from operating or attempting to operate a vehicle with an alcohol concentration of .05 or more and any detectable amount of delta-9 THC in the person’s blood.

Acknowledging testimony from numerous witnesses that individuals who use small amounts of marijuana or grow a limited number of plants should not be treated as criminals, the proposal also extended the decriminalization efforts of the last legislature. It provided that possession of up to 2 ounces of marijuana would be treated as a civil violation, as opposed to the current one-ounce limit. It also decriminalized the cultivation of up to two marijuana plants, recognizing that decriminalizing possession of a small amount of marijuana is inconsistent with requiring users to engage in criminal conduct to obtain that marijuana. In addition, the proposal decreased the penalties for other marijuana offenses, changing certain offenses to misdemeanors and reducing maximum jail times and fines.

This proposed strike-all was voted down on a 6 to 5 vote. An amendment to the bill was proposed that took out the provisions related to decriminalization. This strike-all amendment passed on a 6 to 5 vote.

With the strike-all amendment, the Judiciary Committee recognizes that Vermont seeks to address public health and safety issues that currently confront the state from marijuana use. It also recognizes that legalization of marijuana is likely going to occur more broadly in the region. It allows the state to prepare for that eventuality while also addressing current concerns.